In order to prevail, the plaintiff must prove each of the following by a preponderance of the evidence:

1. that the plaintiff was discharged from employment by the employer;

2. that such discharge was without "just cause"; and

3. that the union breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement.

The plaintiff must prove all three of the above whether [he] [she] is suing the union, the employer, or both. In this case, the plaintiff is suing [[the union] [the employer] [both the union and the employer]].

If you find that the plaintiff has proved each of the elements on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Under the law, an employer may not discharge an employee governed by a collective bargaining agreement, such as the one involved in this case, unless "just cause" exists for the employee’s dismissal. The term "just cause" means a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice; that is, some cause or ground that a reasonable employer, acting in good faith in similar circumstances, would regard as a good and sufficient basis for terminating the services of an employee.

A union has a duty under the law to represent fairly the interests of its members in protecting their rights under a collective bargaining agreement. However, an individual employee does not have an absolute right to require the employee’s union to pursue a grievance against the employer. A union has considerable discretion in controlling the grievance and arbitration procedure. The question is not whether the employee is satisfied with the union representation or whether that representation was perfect.

Breach of the duty of fair representation occurs only where a union acting in bad faith or in an arbitrary or discriminatory manner fails to process a meritorious grievance. So long as the union acts in good faith, it may exercise its discretion in determining whether to pursue or process an employee’s grievance against the employer. Even if an employee’s grievance has merit, the union’s mere negligence or its exercise of poor judgment does not constitute a breach of its duty of fair representation.

Comment

This jury instruction applies when an employee or former employee files a suit against either the union or employer. It also applies in a hybrid suit against the employer and union. A plaintiff may decide to sue one defendant and not the other, but must prove the same case whether the suit is against one defendant or both. Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (explaining that most collective bargaining agreements accord finality to grievance procedures established by agreement).

To support a breach of the duty of fair representation claim, the plaintiff must prove that the employer’s action violated the terms of the collective bargaining agreement and that the union breached its duty to act honestly and in good faith and to avoid arbitrary conduct. Id. at 563; see also Hines v. Anchor Motor Freight, 424 U.S. 554, 564 (1976) (holding that union is always subject to complete good faith and honesty of purpose in exercise of discretion); Vaca v. Sipes, 386 U.S. 171, 177 (1967).

A union is not liable for merely negligent conduct. See U.S. Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990); Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir.2000). Breach of the duty of fair representation occurs only when a union’s conduct is arbitrary, discriminatory, or in bad faith. See id. For example, "[a] union breaches its [duty of fair representation] if it ignores a meritorious grievance or processes it in a perfunctory manner." Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir.1995) (citing Vaca, 386 U.S. at 191).

A union’s actions are arbitrary "only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be ‘irrational.’" Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67 (1991). See also Conkle, 73 F.3d at 915-16 (holding that union’s decision is arbitrary if it lacks rational basis); Johnson v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir.1985) (holding that reckless disregard may constitute arbitrary conduct); Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982) (defining arbitrary as "egregious disregard for the right of union members").

To establish that a union acted in "bad faith," a plaintiff must provide "substantial evidence of fraud, deceitful action, or dishonest conduct," Humphrey v. Moore, 375 U.S. 335, 348 (1964), or evidence that the union was motivated by personal animus toward the plaintiff. See Conkle, 73 F.3d at 916 (including personal animus as basis for finding of bad faith)